Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

In another sign that resistance to better, science-based practices will eventually have to yield, a news report indicates that a member of the South Carolina has introduced a bill that would require police to record interrogations of suspects.

The bill, proposed by Rep. Todd Rutherford of Columbia, “would require judges to instruct jurors that they could ‘draw an adverse inference’ if a law enforcement officer failed to record the questioning of a suspect unless there was an equipment failure.” That required instruction would effectively require that the police record interrogations, because jurors would hear from the court that the interrogation might be suspicious.

Even if the bill does not pass, the significance of the proposal is hard to miss. An increasing number of states and jurisdictions require recording of interrogations under various circumstances (see the Innocence Project’s map here), and the research shows that the recording requirement does not harm the investigation process. In fact, recording turns out to be a great help to the police overall. The research of Thomas Sullivan on the practical effects of recording has been particularly insightful and helpful on this issue, and academics such as Richard Leo, Saul Kassin, and Richard Ofshe have made tremendous contributions in the area of false confessions and why recording can help.

More to the point, South Carolina would not be viewed by anyone as a jurisdiction that has been particularly favorable to defendants on criminal justice issues. The fact that the legislature in South Carolina now has a proposal to consider on recording interrogations means that, little by little, we are nearing a tipping point, which will bring us closer to what the scientific research shows us.

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Thank you very much for all the scientific information and critical approaches exposing flawed theoretical frameworks sustaining poor legal practices at the investigative stage of criminal cases. Only through dialogue and critical analysis will we be able to construct a more civilized society, if at least in the USA. I couldn’t start describing the benefits of laws prescribing the use of cameras to record every custodial and non custodial interrogation, and ideally, to record every contact between citizens and law enforcement agents, especially when the suspect is someone non proficient in the English language or when other vulnerable population like the juvenile, and the mentally and intellectually challenged are involved. In what I consider a masterpiece, ” Coerced Confessions” by Susan Berk-Seligson , she describes a series of situations in which linguistic tactics of interrogations of non native speakers of English go beyond ethical and moral limits. In my personal experience, I have observed all kinds of biases and abuses to say the least, when investigators try to elicit incriminating statements or confessions from suspects via untrained police/detective interpreters (I have coined them “putative interpreters,” ). these putative interpreters add an element of linguistic distortion, psychological coercion, and confusion in the non English speaking suspect. Usually, a “double investigation” takes place in cases involving “putative interpreters” because they switch back and forth between the monolingual lead investigator askingnhis own questions and the putative interpreter’s own line of questioning, thus creating a bombarding of questions and false arguments to induce the suspect to concede or to vocalize the desired results in the agenda of the investigators . No one who has not done transcription/translation work could imagine the omnipresent linguistic and discourse chaos in the interrogating room involving limited English proficient suspects/witnesses and “police interpreters.”

I thank all of you for these thoughtful and well considered responses. Neil, you are the kind of law enforcement leader who can convince other members of the profession to come forward and step in to the 21st century. Wade, your analogy to Miranda is right on, and I repeated it in the talk I did on the book on Jan. 31st, at the University of Toledo. Don, I like your way of putting this: “I advocate pulling back the curtain and let the light shine for all to see.” I’m going to quote you.
David Harris, “Failed Evidence”

Recording the interview, does for the investigation what video recording the drunk driver in the booking room does for a driving while impaired conviction. Additionally, with no record of the interview, the door is open to losing cases based upon implication. One does not have to prove the interviewer did something wrong in the conduct of the interview, they only have to raise the idea that if the interview was appropriate no one would want to “hide it”. I advocate pulling back the curtain and let the light shine for all to see. Here in North Carolina we record certain felony levels and up.

There are more positives about requiring a recorded intervew than there are negatives. The efficiency of the interview is enhanced, the integrity is solidifed, and there is solid documentation that can be produced if the interviewee or suspect decides to recant or lie. Also, I’m reminded of the arguments that surfaced years ago when Miranda was enacted. Many thought that would be the end of solving cases or obtaining confessions. But what did it do? It simply created an atmosphere that made professional police officers, detectives, and investigators become better at what they do. And that by itself is a big win for justice.

I guess I am somewhat surprised by the reluctance of some L/E agencies to move to the routine practice of video and audio taping all interviews.Budget should also not be an issue. In cases where agencies may lack financial resources to purchase the necessary technology for this practices, neighboring agencies should combine resources and create a centralized interview facility for this purpose. As a retired police administrator I view this practice as a “must” to protect the investigative process, the rights of an accused, the reputation of the agency and the work product provided to the prosecuting attorney. This is the 21st century.This is a practice that should have been decades old in implementation.